An Explainer on Harris v. Quinn and the Constitutionality of Fair-Share Agreements

On September 30, 2013, the Supreme Court will review the petition for a writ of certiorari in Harris v. Quinn. The case concerns a “fair-share” provision of a collective-bargaining agreement between the State of Illinois and a union representing Medicaid home-care personal assistants. Under the fair share provision, personal assistants covered by the agreement who are not members of the union are required to pay a fee proportionate to the costs of the collective bargaining process, contract administration, and related matters.

Two questions are presented to the Court: first, whether the court of appeals correctly concluded that the fair-share provision does not violate the First Amendment because the personal assistants subjected to it are employees of the State of Illinois; second, whether the court of appeals correctly held that other personal assistants do not have a ripe First Amendment claim because they are not represented by a union and do not, and may never, pay any fair-share fees.

The following discussion will review the relevant factual background, the court of appeals’ holding, and the primary issues raised by the briefs submitted in support of and opposition to the certiorari petition.

Background

The Illinois Department of Human Services runs two Medicaid-waiver programs, a “Rehabilitation Program” and a “Disabilities Program,” which subsidize the costs of home-based services for disabled patients who might otherwise face institutionalization. Under both programs, patients select a personal assistant who meets the qualifications set by the State. Patients sign employment agreements directly with personal assistants, with terms established by the State. The State sets wages and pays personal assistants directly, withholding taxes and Social Security. The State also determines the specific services provided by each assistant through a Department-employed counselor and a codified “service plan.” The service plan delineates the type of services to be provided to the patient, the specific tasks involved, the frequency with which the specific tasks are to be provided, and the number of hours each task is to be provided per month.

In 2003, the path was cleared for personal assistants to unionize when the Illinois Public Labor Relations Act was amended to designate “personal care attendants and personal assistants working under the Home Services Program” as State employees for purposes of collective bargaining. Then–Governor Blagojevich issued an executive order directing the State to recognize an exclusive representative for Rehabilitation Program personal assistants if they designated one by majority vote. Several months later, the content of this executive order was codified in Illinois Public Act 93-204. Later that year, a majority of the 20,000 Rehabilitation Program personal assistants voted to designate SEIU Healthcare Illinois & Indiana as their collective bargaining representative with the State. The Union and the State negotiated a collective bargaining agreement that, among other things, included a “fair share” provision, which required “all Personal Assistants who are not members of the Union . . . to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.”

In 2009, Governor Pat Quinn issued an executive order directing the State to recognize an exclusive representative for the Disabilities Program personal assistants, if a majority so chose. Id. In a mail ballot election, however, a majority of the approximately 4,500 Disabilities Program personal assistants rejected representation by any union. Nevertheless, a union can request new elections in the future, and, under Illinois labor law, may bypass an election altogether if it collects a sufficient number of union cards from the personal assistants.

In 2010, personal assistants from both groups filed a two-count complaint against the Governor and the three unions involved. The Rehabilitation Program plaintiffs claimed that the fair share fees they were required to pay violated the First Amendment by compelling their association with, and speech through, the union. The Disabilities Program plaintiffs argued that although they did not yet pay fees, they are harmed by the threat of an agreement requiring fair share fees. The district court dismissed the Rehabilitation Program plaintiffs’ claims for failure to state a claim upon which relief could be granted. It dismissed the Disabilities Program plaintiffs’ claims for lack of subject matter jurisdiction because they lacked standing and their claims were not ripe.

The Seventh Circuit Decision

Writing for a unanimous panel, Judge Manion held that, with respect to the Rehabilitation Program plaintiffs, the fair-share fees withstand First Amendment scrutiny, in that they are, for First Amendment purposes, identical to the fees upheld by the Supreme Court in Abood v. Detroit Bd. of Educ.

Abood is best understood in the context of another Supreme Court case, Railway Employees’ Dept. v. Hanson. In Hanson, the Court upheld from First Amendment challenge a “union shop” agreement between a railroad company and a union that required all employees of the railroad to become nominal, dues-paying members of the union as a condition of employment, The Court argued that agreements of this sort are constitutionally justified by Congress’ interest in maintaining industrial peace and in distributing the costs of collective bargaining to all those who benefit from it, preventing free-riding. The Hanson Court defined industrial peace broadly, stating that “[t]he ingredients of industrial peace and stabilized labor-management relations are numerous and complex,” and that industrial peace includes “stabilized labor-management relations.” Abood extended the scope of the holding in Hanson to include public employees; it also articulated a more expansive concept of industrial peace, emphasizing the stabilizing effect the designation of a single representative can have on labor-management relations.

In Harris v. Quinn, the Seventh Circuit reasoned that if the Rehabilitation Program personal assistants are State employees, then the fair share agreement does not violate the First Amendment under Abood. Applying a joint employment test derived from the Supreme Court case Boire v. Greyhound Corp., the Seventh Circuit determined that the personal assistants are employees of both the State and the home-care patients for whom they work. Because the assistants are employees of the State, Abood applies. While Abood did not involve a joint employment situation, the interests behind Abood and Hanson, promoting labor peace and preventing free-riding, are just as salient in the personal assistant context. Hence, the court concluded that the fair share agreement does not violate the First Amendment.

With respect to the Disabilities Program plaintiffs, the Seventh Circuit dismissed their claims without prejudice because those plaintiffs are not presently required to financially support any union’s speech. Although Governor Quinn’s executive order makes it likely that a future union will sign a fair share agreement similar to that between the State and the Rehabilitation Program personal assistants, the court concluded that to hear the case on the merits now would render an advisory opinion, which is precisely what the doctrine of ripeness helps to prevent.

Petition for Certiorari

The gravamen of the petitioner’s argument is that this case presents a new form of compelled expressive association, different in kind from Abood, in which individuals who provide services for government-aid recipients are forced to associate with a private organization to petition the government over its subsidies for the services. Essentially, the fair share agreement forces personal assistants as private citizens to lobby the government on behalf of causes they do not support, tantamount to compelling their support for a political party. Petitioners claim that the labor peace interest in Abood only extends to an interest in maintaining government workplaces. Such interest does not apply to personal assistants because they work in the private homes of their patients, not in government workplaces. Finally, petitioners contend that the claims of the Disabilities Program plaintiffs are ripe—they should not be required to wait until they suffer constitutional injury to obtain preventative relief.

Respondents, in urging denial of the petition for a writ of certiorari, dispute petitioner’s description of the fair-share agreement as requiring private citizens to lobby their government in a novel manner. As the Seventh Circuit found, personal assistants are State employees, such that the case falls under Abood. Petitioners really are asking the Court to reexamine the particulars of the many Illinois statutes and regulations governing personal assistants and to reevaluate whether these laws create an employment relationship that is sufficiently close to the one in Abood. This question implicates no split in authority. Similarly, there is no reason to review the Seventh Circuit’s decision on ripeness, as there is no split in authority on that issue as well.

The United States has also submitted a brief as amicus curiae urging denial of the petition, contending that the Seventh Circuit was correct to view the personal assistants as State employees under Abood, and that the Court should not grant certiorari over a matter so fact-dependent, and about which there is no circuit split.

Conclusion

Curiously, the petition for certiorari was filed in November 2011 and the Supreme Court has still not made its decision on whether to take the case. The conference on September 30 will be the 8th conference in which the petition has been discussed. If the Court decides to finally grant certiorari, their ultimate decision could have a profound impact on the hundreds of thousands of unionized home-care personal assistants around the country.

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